Parenting Coordinator: Friend To Families in Conflict (?)

1. Parenting Coordinator: Friend To Families in Conflict (?) • By Ken Nathens • Nathens, Siegel Family Lawyers • Toronto, Ontario

2. FRIEND DEFINITION Friend [frend] Show IPA noun 1. a person attached to another by feelings of affection or personal regard. 2. a person who gives assistance; patron; supporter: friends of the Boston Symphony. 3. a person who is on good terms with another; a person who is not hostile: Who goes there? Friend or foe?

3. DEFINITION OF PARENTING COORDINATOR • According to Barbara Jo Fidler, Ph.D., C. Psych., Acc. FM (from “Parenting Coordination: Lessons Learned and Key Practice Issues” 31 CFLQ No. 2 (March 2012) • “Parenting coordination is a dispute resolution process provided by mental health or legal professionals that assists high-conflict parents to implement their existing parenting plan in a child-focused and expeditious manner that minimizes parental conflict, thereby reducing risk to children. It is a hybrid role that blends both mental health and legal functions.”

4. PC NOT SEXY BUT IMPORTANT FAMILY LAW TOPIC • SHOWS GROWING IMPORTANCE/ACCEPTANCE OF ADR INTO FAMILY LAW WITH ADVANTAGES AND DISADVANTAGES • AND ACCEPTANCE OF NON LAWYERS NON JUDGES DEALING WITH FAMILY LAW ISSUES • FORM OF ADR HYBRID OF MEDIATION AND ARBITRATION

5. TEN ISSUES THAT COME UP OFTEN IN FAMILY LAW (OR A DAY IN THE LIFE OF A FAMILY LAWYER) • 1. Who gets/keeps Sarah’s passport/OHIP card? • 2. How do we work it out so mom/dad can both go to Wayne’s hockey games without fighting with one another? • 3. What time does Matthew call Mom when at dad’s? Should he have his own cell phone? • 4. Miguel has Spanish class Monday afternoon but its dad’s time, does he have to take him? • 5. Should summer vacation with dad be two consecutive or non consecutive weeks? • 6. Should pick up of Tyler take place at police station, Tim Horton’s, Starbucks or grandma’s? If Tim Horton’s which one? • 7. Do bicycles go back and forth between mom and dad’s home? • 8. Grandpa is getting married, again and it is dad’s weekend, can Dakota come to wedding with mom and if so can dad make up the weekend next week?

6. TEN ISSUES(CONT’D) • 9. Kaylee is on medicine, mom deletes my texts. How do I make sure mom understands and gives the medicine during Kaylee’s time with her? • 10. We are supposed to split Christmas/Chanukah/Easter etc but he always takes first choice and never permits me to take the children to visit my family. We cannot work this out • ANNOYING BUT IMPORTANT-SEEMS TRIVAL BUT IS NOT-GOES TO FAMILY DYNAMICS AND EXTENDING CONFLICT POST SEPARATION-NOT IN BEST INTEREST OF CHILDREN • Example-film clip.

7. THREE ROLES OF PARENTING COORDINATORS 1. Implementation and modification, where necessary, of the existing parenting plan (within limits) 2. Ensuring compliance with the plan 3. Resolving parenting disputes and issues in a timely manner-Fill in Parenting Plan Gaps

8. Five Functions of Parenting Coordinator • 1. Assessment (of family dynamics, not of custody and access) • 2. Parent education-see Department of Justice Handout- “Parenting After Separation” • 3. Conflict management • 4. Case management/coordination • 5. Decision making as last resort (binding arbitration within limited scope of jurisdiction)

9. FAMILIES FOR WHICH PCs MAY BE HELPFUL • “Conflicting co-parenting” are cases where PC may be needed. These are characterized by poor communication, low cooperation, high levels of distrust, control and dependency, and ineffective decision-making. • In 2002 study referred to by Dr. Fidler in “Parenting Coordination: Lessons Learned and Key Practice Issues” (Heatherington & Kelly) after 2-3 years of separation 30% of parents exhibited “cooperative co-parenting” 40% where characterized as “parallel co-parenting” and a minority of about 15-20% were identified as “conflicted co-parenting”. These high conflict cases consume as much as 90% of the courts’ time. • These chronic cases have potentially a significant mental health consequence for both children and parents. (Henry, Fieldstone, Bahac, 2009)

10. Families For Which PC’s May Be Helpful (continued) • Although personality disorders and psychiatric illness are disproportionate in this conflicted group. May be beyond help of PC’s.

11. CASES WHEN PC’s SHOULD NOT BE USED • Cases where participants use PC process to keep conflict alive • Process is subject to exploitation-Difficulty of getting matter before a Judge once PC contract signed can be used to advantage of one parent • If child is abused or subject to abuse by parents • Mental illness or personality disorders-Parents unable to take direction • Alcohol and drug dependencies • Screening Process necessary to determine when PC will be useful?

12. LEGAL STATUS OF PARENTING COORDINATOR • In Ontario and rest of Canada other than B.C. • In Ontario no specific statutory recognition of PC-It is a form of mediation (voluntary process) and arbitration and Arbitration Contract is a form of domestic contract pursuant to the FLA • Status similar to mediation/arbitration, thus process is voluntary and on consent, although arbitration portion of PC is governed by FLA

13. LEGAL STATUS OF PC • Under the 2006 amendments, a family arbitration agreement is a 'domestic contract' as defined in the Family Law Act. This means that to be valid, it must meet certain conditions, in addition to those that apply to all contracts: • It must be witnessed and in writing • It must state that the arbitration is governed exclusively by Ontario or other Canadian law.

14. S. 59.7 of FLA • Secondary arbitration • 59.7  (1)  The following special rules apply to a secondary arbitration and to an award made as the result of a secondary arbitration: • 1. Despite section 59.4, the award is not unenforceable for the sole reason that the separation agreement was entered into or the court order or earlier award was made before the dispute to be arbitrated in the secondary arbitration had arisen. • 2. Despite clause 59.6 (1) (b), it is not necessary for the parties to receive independent legal advice before participating in the secondary arbitration. • 3. Despite clause 59.6 (1) (c), the requirements of section 38 of the Arbitration Act, 1991 need not be met. 2006, c. 1, s. 5 (10). • Definition • (2)  In this section, • “secondary arbitration” means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award. 2006, c. 1, s. 5 (10). • Enforcement • 59.8  (1)  A party who is entitled to the enforcement of a family arbitration award may make an application to the Superior Court of Justice or the Family Court to that effect. 2006, c. 1, s. 5 (10).

15. Legal Status of PC (cases of interest) Ontario • Cases of Interest • Bozin v. Bozin, 2010 CarswellOnt 1492 (O.S.C.) McGee J. “There are many advantages in moving parenting issues from the courts to a parenting coordinator. It is a decision increasingly being made by separated parents, and it is their decision alone. It is outside the jurisdiction of the the court to delegate the court’s authority to a parenting coordinator, or to dispense with the consent of a parent to an Agreement for Mediation/Arbitration or an Agreement for Parenting Coordination Services and Arbitration in accordance with the Arbitration Act and Family Statute Law Amendment Act. “

16. Cases of Interest (cont’d) (ii) See also Czutrin J. in Steels v. Butrimas, 2012 CarswellOnt12128 (Ont. S.C.)-court cannot delegate jurisdiction to PC iii) But see Katz v. Katz (2010), 1 R.F.L. (7th) 329 (O.S.C.) court uses parens patriae jurisdiction to appoint a parenting coordinator to “serve as a facilitator, make recommendations to resolve disputes, and assist in implementation of a parenting plan, and negotiate the separation process in the most sensitive and supportive manner possible for the child.” Does not include arbitration role. (iv) See also McCall v. Res, 2013 CarswellOnt, 5865 Justice Spence of O.C.J. without any specified authority, parens patriae or otherwise, orders the appointment of a PC not on consent, as a way to level the playing field “given the father’s behavior towards the mother and his inclination to exert his power and authority through intimidation.”

17. Legal Status of PC-BC • Division 3-There may be an agreement or order for a PC under B.C. FLA proclaimed in 2013. • Other Jurisdictions to Follow? • -Brief Overview of B.C. FLA ss 14-19 (Handout)

18. WHO MAY BE A PC (Ontario) • No specific PC statute sets standards of practice and no organizations that license PCs specifically. • Professionals accountable to governing body (LSUC, College of Social Workers, Psychologists etc. ) • Only statutory requirement to act as PC is set out in regulations to Ontario Arbitration Act: Every arbitrator who conducts a family arbitration shall have received the training approved by the Attorney General for the arbitrator or class of arbitrators, as set out on the Ministry’s website. O. Reg. 134/07, s. 3.

19. WHO MAY BE A PC Ont. (Cont’d) Ministry Website Domestic Violence 1. all family arbitrators must have received at least a training program of 14 hours (all taught in a week or less) in screening parties for domestic violence and power imbalance. The training should be provided by a reputable provider and include attention to most or all of the following elements: 2. the nature and extent of domestic violence 3. the nature of the arbitration process and how it differs from mediation or direct negotiations 4. the roles and responsibilities of the screener 5. how to screen for abuse and power imbalance 6. the use of one or more tools for screening, including in an arbitration context 7. the form and content of screening reports 8. limitations of screening techniques 9. the effects on children of exposure to domestic violence 10. how the best interests of the child are affected by domestic violence 11. how to identify concerns of people from diverse cultures 12. how to determine when arbitration is or is not appropriate, and how to develop options for proceeding with arbitration when arbitration would be appropriate with 13. safeguards in place 14. how to adapt parenting plans when domestic violence is present 15. knowledge of community resources to deal with domestic violence.

20. WHO MAY BE A PC Ont. (Cont’d) Ministry –Cont’d All family arbitrators who are not members of the Ontario Bar or another Canadian bar must complete 30 hours of training on Ontario family law. While all of this need not be taken at one time, there are certain core competencies that would benefit from being learned as a package • AFCC (Association of Family and Conciliation Courts) Guidelines (2005) specify that a PC shall be qualified by education and training to undertake parenting coordination and shall continue to professionally develop in the role. The PC shall be required to have training and experience in family mediation. PC shall be licensed mental health or legal professional in area relating to families.

21. B.C –Who May Be A PC • REGS-BC FLA(Handout) • B.C. Regulations sets minimum training and practice standards for family mediators, family arbitrators and parenting coordinators who wish to assist people to resolve family law disputes.

22. INVOLVEMENT OF PC (PC AGREEMENT) • 1. Parenting Coordination Agreement Specifies Terms of Service Key Provisions of PC Agreement • 1. Principles • 2. Voluntary Nature • 3. PC is “Neutral” Third Party charged with implementing order or parenting agreement in a manner consistent with child’s “best interests” • 4. Two components-mediation-arbitration-paragraphs 21 ff of PC Agreement • 5. Exclusions from PC roll • 6. Waiver of right to litigate • 7. Length of Term

23. PC AGREEMENT (cont’d) • 7. Secondary Arbitration pursuant to s. 59.7 (2) of FLA • 8. Waiver of s. 35 of the Arbitration Act, S.O. 1991 c. 17. • 10. Children involvement-interview with children and disclosure of information provided by children (paragraph 23 and paragraph 37 of PC Agreement) • 11. Limited Rights of Appeal (s. 45 of Parenting Agreement) • 12. Termination or Withdrawal from PC-(s. 48 of PC Agreement) PC may resign on 30 days notice. • 13. Fees (of course)-$200-$350 per hour not unusual-Provisions 56 and 59, 60 of PC Agreement regarding allocation of fees and costs.

24. ADVANTAGES OF PC See R. Craig Neville “Parenting Coordination; Making it Work for Your Clients Under the New Family Law Act” CBA Family Law Subsection (2013) • Determinations made in timely fashion • PC’s develop knowledge of family dynamics over extended period working with family • Attempts to negotiate settlement, if not determination made. No wasted mediation time. No need to commence expensive court procedure

25. ADVANTAGES OF PC • 4. Justice delayed is justice denied. Example family trip or school trip. • 5. Justice available on the cheap (compared to court). Remedies power and financial imbalances between parents at least short term while PC involved. • 6. Less negative impact on children. Disputes resolved quickly and without extended argument and unnecessary cost (in theory). General recognition among professionals that parental conflict post separation is not positive for children. • 7. PCs deal with the day to day annoyances that Judges prefer not to deal with or tell parties to go into hall to work out. Example pick up at Tim Horton’s or McDonald’s, extra-curricular activity scheduling. Therefore, there is an outlet for parents stuck in on going parenting conflict that seems petty, but has impact on familyand children.

26. CRITIQUE OF PC-A Child’s Perspective • 1. Parents pick PC-not child • 2. Child is not a party to a PC contract. How does PC know what is in child’s best interest, if no child involvement? PC Agreement is concerned about parent’s behavior and parents getting along, secondary focus on child. • 3. Contract does not require PC to talk with child nor does child have a right to legal representation in PC process-Parents argue best interests, PC decides or mediates, possibility of no child involvement. Up to PC how to conduct the process. Are child’s views and preferences taken into account

27. CRITIQUE OF PC (Cont’d) 4. Role of child in PC process not defined. Seen by some as way to keep children out of litigation rather than as stake holders in outcome. Consider statement of Justice Rogers in Sehota v. Sehota 2012Carswell 2494 (Ont. S.C.): “ Ms. Cook (the PC) interviewed the child, Jai. While this is said to have been on the consent of the parties, the court is concerned that a PC would adopt this approach. Presumably, the main purpose of a PC is that the parents are to be assisted with decision-making and communications so as to keep the child out of the fray, not to involve the child by interviewing with forensic findings in mind. The task of interviewing a child is very difficult. Lawyers who are on the panel for the OCL have extensive training so as to how to interview without leading questions and in a manner that attempts to ascertain the true views of the child. This is a lengthy and cautious endeavor. Ms. Cook gave no description of the interview with the child. It would be impossible for the Court to know the worth of the interview and the weight to be given to such effort. Nor does the Court wish to encourage the interviewing of a child by a PC.”

28. CRITIQUE OF PC (cont’d) Case speaks to qualification issues as well as role of child in PC process. • 5. Parents pay fees-PC responsible to parents, not necessarily to child. Follow the money? Conflict? • 6. PC can quit-if going gets rough. Leads children/family in difficult position. PC Burnout? Nothing can be done for family other than court? • 7. My own mixed experiences with PCs. • 8. Success Rate-50% renew contract with PC • 8. Prolonging of family conflict. Avenue to create disputes. • 9. Parents can opt out. Not pay if not happy. PC can withhold decision prior to payment.

29. CRITIQUE OF PC (cont’d) 10. Elitist (?) and trivial (?)-Two levels of justice for those who pay, those who cannot. Gives parents way to argue on matters that otherwise could be agreed to-such as slight variations to scheduling. Is PC babysitter for parents? If so, who is taking care of the children’s interests? 11. Promotes shared parenting and joint parenting in situations where not appropriate-where parents cannot get along. PC gives way out for Judges to avoid making difficult decisions. Consider if in high conflict whether it is better to have traditional sole custody with very specific court order or parenting plan in place, little room for negotiation or change. 12. More professionals on Family Law pay dole. Maybe less professionals needed but more effective and accessible court system. Can masters/trained paralegals perform same role in court, or have FRO type enforcement mechanism if we are concerned?

30. CONCLUSION • PC FRIEND TO SOME • NOT HELPFUL TO OTHERS PARTICULARLY HIGH CONFLICT CASES WHERE PC MAY SERVE TO EXTEND AND PROLONG CONFLICT GIVE PARTIES FURTHER VENUE FOR CONFLICT • PCs ARE OFTEN DEDICATED PROFESSIONALS WHO FILL A NEEDED VOID BETWEEN INEFFECTIVE PARENTAL COMMUNICATION AND PARENTS NEEDING TO GO TO COURT ON EVERY MINOR PARENTING ISSUE THAT MAY COME ALONG. LIKE ALL OTHER PROFESSIONALS IN FAMILY LAW, PCs SATISFY A DEMAND THEY DID NOT CREATE. • IN THEORY POSITIVE FOR KIDS ALTHOUGH KIDS INVOLVEMENT IN PROCESS NEEDS FURTHER THOUGHT • AS FATHERS BECOME MORE INVOLVED WITH PARENTING, INCIDENCES OF JOINT CUSTODY SHARED PARENTING INCREASE, THERE IS A NECESSARY ROLE FOR PCS TO PLAY TO HELP AVOID PLAYING CHILD IN THE MIDDLE.